I wrote this analysis earlier in the year, when Judge Hanen applied his injunction. But I wrote it for myself, not with a view to publish. I assumed that the lawyers would raise all these issues and more, and the appeals court would sort out the mess. Since Judge Hanen severely reprimanded the government lawyers for “misleading” him about the three-year DACA awards that were accidentally given after his injunction, I assume that the misinformation in his opinion was also accidental – probably due to misleading arguments in briefs offered to him by the parties.
That said… here it is. Six months later, none of these issues have been addressed by the suits or the robes.
When a legal brief or judicial opinion quotes and cites external sources, context is everything. Quoting out of context, and leaving the intended meaning on the cutting room floor is misleading. Also quoting an older brief when a more up to date revision is available – where the latest doesn’t quote so well – would not be appreciated by a Judge if submitted to the court by a lawyer, and isn’t appreciated by the reader of a judicial opinion either. Finally, an argument that only holds when you omit key information should not be used to justify a judicial opinion – particularly when the opinion is a justification of an action that severely harms children. We owe it to the children who have been stopped from applying for DACA to read the opinion. It can be found by searching for CIVIL No B-14-254 in the US District Court for the Southern District of Texas.
This opinion targets the DAPA program starting in May. And then blocks a minor extension to DACA that was due to go into effect in a couple of days that would have allowed a number of children who happened to be brought here after June 2007 to get the same merciful treatment given to their peers and classmates. These children face the irreparable harm. They are the ones who now go from being about to file and finally find a safe haven, to dealing with the fear all over again. If they had plans for college or a future, these plans are now on hold. That is an irreparable harm. That’s why I am writing this blog post.
Here are the issues I want to look at
1) The opinion cherry-picks quotations from the government’s brief to the Supreme Court in Arizona v. United States. And chooses the brief for the petition for Cert rather than the brief that was submitted to the Court later in the case itself. The quoted sections are significantly different. I would have preferred to have read the government’s definitive statement to the Supreme Court rather than a preliminary response to a request for Certiorari.
2) The opinion quotes the sentences before the holding in Plyler v. Doe – chooses not to put the quote in the context of the Supreme Court’s holding, and instead merge this sentence with its footnote as if it is a consistent paragraph. There is no indication that it is even out of context. Seamless editing. Or textual photoshopping.
3) The opinion accepts the “harm” to Texas in terms of the extra cost of their subsidy of driver licenses to a significant new group of people, and does not mention that this harm is only there because Texas chooses not to apply a personal income tax to its residents. Every state that does have a state income tax will benefit massively from the requirement that new workers will pay state taxes.
4) The opinion intends to halt the DAPA program that is scheduled to start in May, and the injunction also stops the government making minor extensions to DACA. The opinion does not consider the harm to children between the ages of 15 and 18 and the irrecoverable loss of opportunity for these young people from a significant delay as their dreams and hopes of college and a future life are shattered.
Cherry picking the version of a government brief to cite
The quotation is introduced as “the Department of Justice has likewise acknowledged that the states’ interests are related to and consistent with the purposes implicit within the INA.” (opinion, page 79).
We are not told what “implicit” purposes need to be read into the law, but we are given a “quote” that is actually a well chosen selection of 27 lines from the opening 150 lines of the government’s statement in the brief. The first ellipsis is a gap of 15 lines. The second is 59 lines. The third (inline) ellipsis is 10 lines. After that, the ellipses do what they are intended for, removing distracting small asides and citations and allowing a smooth reading.
Let’s look at a few of the changes the government made in their definitive brief.
The quoted “Unlawful entry into the United States and reentry after removal are federal criminal offenses” is changed to “An alien also commits a federal misdemeanor if he unlawfully enters the United States (such as by eluding immigration inspectors). [cite] Unlawful re-entry after removal, a more serious crime, is a federal felony.”
The first ellipsis in the opinion cuts the second sentence – “Federal law, however, does not make mere unlawful presence in the United States a criminal offense.” This sentence was rewritten in the definitive brief as “An alien who is merely present in the country without federal authorization is not subject to criminal prosecution, but only to civil removal”
Since much of the opinion is about “abandonment” and the need to prosecute, you would think this is relevant. But it would take you down a road you don’t want to go. They are not subject to criminal prosecution because if they were, they would have the right of legal representation under Gideon. Instead, they face civil removal. We are dealing with a civil matter. Let’s have the cake, and eat it too.
Also omitted is a fascinating tidbit:“Congress has directed DHS to prioritize the identification and removal of aliens convicted of a crime by the severity of that crime” – How embarrassing would that be if used in the opinion – Congress in the DHS Appropriations Act of 2012 actually requiring the “focus on felons” strategy announced in November. Ellipsis is really useful.
The second part is less troubling. In the opinion-version “the INA” prohibits employers from knowingly hiring or continuing to hire aliens who are not authorized to work. In the definitive brief, “Federal Law” does the prohibiting.
Next, we learn that “The federal immigration laws encourage States to cooperate with the federal government in its enforcement of immigration laws” but the government’s definitive statement is that “Federal immigration laws contemplate several ways in which state and local officers may cooperate with federal officials in federal enforcement of the INA” – a subtle point – cooperation of officials is not the same as “working with the States.”
The “Congress has also authorized DHS to enter into agreements with States to allow appropriately trained and supervised state and local officers to perform enumerated functions of federal immigration enforcement” was reworked to enumerate the functions as “investigation, apprehension or detention” under the direction of the [Secretary]. And it also states that these are formal agreements. This may be because direct supervision of state officials by the DHS Secretary might be seen as commandeering if the state had not formally agreed to the arrangement.
So the State’s involvement is in the agreement to allow their officials to work with the federal government.
The takeaways from the quoted section should have been
1) Unlawful presence does not lead to criminal prosecution, rather civil removal
2) Congress has authorized the “go after felons” prioitization
3) The States’ involvement is to allow their officials to help the federal government, since state and local officials cannot be under the direction of the DHS without such agreements.
Instead the takeaway is – we are told – that the DoJ acknowledges that “the states’ interests are related to and consistent with the purposes implicit within the INA.”
Taking quotes out of context is textual Photoshopping. And page 1 is the best photoshopped account of Plylar v. Doe ever. Here’s what Plylar says (unphotoshopped)
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of undocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders. This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents The existence of such an underclass presents most difficult problems for a Nation that prides itself on adherence to principles of equality under law.
The children who are plaintiffs in these cases are special members of this underclass. Persuasive arguments support the view that a State may withhold its beneficence from those whose very presence within the United States is the product of their own unlawful conduct. These arguments do not apply with the same force to classifications imposing disabilities on the minor children of such illegal entrants. At the least, those who elect to enter our territory by stealth and in violation of our law should be prepared to bear the consequences, including, but not limited to, deportation. But the children of those illegal entrants are not comparably situated. Their “parents have the ability to conform their conduct to societal norms,” and presumably the ability to remove themselves from the State’s jurisdiction; but the children who are plaintiffs in these cases “can affect neither their parents’ conduct nor their own status.” Trimble v. Gordon, 430 U. S. 762, 770 (1977). Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.
The opinion takes the first sentance here:
Sheer incapability or lax enforcement of the laws barring entry into this country, coupled with the failure to establish an effective bar to the employment of un the codocumented aliens, has resulted in the creation of a substantial “shadow population” of illegal migrants — numbering in the millions — within our borders.
It then inlines the footnote that follows it, and then finally includes the next sentence:
This situation raises the specter of a permanent caste of undocumented resident aliens, encouraged by some to remain here as a source of cheap labor, but nevertheless denied the benefits that our society makes available to citizens and lawful residents
This looks like a self-contained description of the problem we have today, implying that the same problem has lingered unaddressed all these years. The terrible irony is one of the conclusions of Plylar – in bold above, and here:
Even if the State found it expedient to control the conduct of adults by acting against their children, legislation directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice.
is exactly what this opinion and temporary injunction is doing to a number of children who had been told they would now be allowed to apply for DACA. I can’t say it better than the verdict of the Supreme Court that this opinion chose to ignore:
directing the onus of a parent’s misconduct against his children does not comport with fundamental conceptions of justice
Four words say it all
fundamental conceptions of justice
The Harm Suffered by Texas
I associate incomplete arguments, missing facts and false conclusions with lawyers’ briefs. They are advocates for a cause. So we need a little more help with this judicial opinion:
Texas will be harmed (and I paraphrase here!) because they subsidize issuing of driver licenses, and will have to find the money for many more once people are approved for DAPA. This would be a valid argument except that it is a consequence of a deliberate choice by the State of Texas. Many states have a personal income tax, and driver license subsidies would easily be recovered by state taxes from all these new taxpayers. Texas chooses to refrain from taxing its residents, yet still subsidize driver licenses. Presumably they have no personal income tax because they want to attract workers to Texas. Everyone who goes there to work benefits from the subsidy and therefore burdens the State. Go figure. They don’t want “that sort of person” to have lawful employment in Texas because…
The injunction causes the abandonment.
My third problem is the “abandonment” argument. It is true that if you selectively deport felons and leave families completely alone, then you are “abandoning” your plan of immediate civil removal of those families. But as the opinion omitted but we saw above, Congress had instructed DHS to focus on felons.
And to show why abandonment is bad, the opinion has a footnote describing a recent crime caused by an undocumented alien. And then the opinion claims that crime by DACA recipients in one county has cost them 9 million dollars. That seems bizarre. Since all DACA recipients are fingerprinted, one would assume that any lawful-presence-suicidal crime by a DACA recipient would have two outcomes. First, identifying and arresting them is as easy as falling off a log. You have their prints and you know where they live. Second, even if you don’t catch them, they lose their DACA when it is time to renew. This extraordinary statistic is dropped into the opinion with no citation. I cannot find it anywhere on the internet. And I really want to see it. I have met a few sad DACA recipients who have ruined their future with a DUI. But 9 million dollars in law enforcement costs against DACA recipients in a single county is extraordinary. If it is true, show me. Don’t just state it with no citation.
The irony is that the injunction creates the abandonment environment that the opinion argues against. You are not abandoning when you require these DAPA candidates to pay for full FBI biometrics checks and that you require they report their address whenever they move, and review their situation every three years. The moment a DAPA recipient commits a crime, the smallest partial print will lead law enforcement to them. Without DAPA the print is just a partial from a shadowy figure who may be somewhere in Texas but who knows where.
The Silver Lining
But there is something sweet – even though the ends don’t justify the means, in the opinion’s Notice and Comment argument. If they wins on these grounds, then finally all immigration agency action will be required to comply with the Administrative Procedures Act, even though DHS insists that they are exempt. It would be a huge step forward if we didn’t have to rely only only on Justice Kagan’s line in Judalang that immigration procedure cannot be “arbitrary and capricious.” A ruling that would allow the government to continue after an APA notice and comment period – and comply fully with the APA – would be big. But the means – as the Supreme Court said in Plylar do not comport with fundamental conceptions of justice.
fundamental conceptions of justice